Scottish Court of Session Decisions

Subject_1 FRAUD.

Bowack
v.
Croll

1748, June 11, 22.
Case No. No. 18.

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One Beattie having in December 1743 assigned his tack from Mr Gordon of Troup to one Bowack of a farm then possessed by Croll, who was married on Beattie's wife's sister; to disappoint this assignation he made a sub-tack of the whole to Croll in February 1744, to commence from the preceding crop. Bowack intimated his assignation to Croll, but only some weeks after the sub-tack, and warned him to remove, and the process came by advocation to this Court; and it being proved that before getting the sub-tack, Croll was in the knowledge of Bowack's assignation, we therefore preferred the assignation, decerned in the removing, and gave expenses; for though Croll was in possession upon his sub-tack before the assignation was intimated to him, and was therefore in that respect preferable, yet it was fraud in Beattie to grant the sub-tack, and Croll being in the knowledge of the assignation was particeps fraudis; and though Beattie had no power to assign his tack, yet neither he nor Croll in his right could quarrel it on that head, and Troup now consents to the assignation. 22d June Adhered, and refused a bill without answers.